Brazilian nationals (the Appellants) were refused their residence cards on the basis of being dependent family members (parents) of EEA nationals exercising Treaty rights in the UK, however the appeal against this decision by the Secretary of State (the Respondent) was allowed.
The Respondent refused to grant residency cards to family members of Italian nationals (Sponsors) on the grounds that insufficient evidence was presented to prove that their presence in the UK was in compliance with Immigration (EEA) Regulations 2006. It was also argued that the Sponsors did not provide evidence of “effective working” in the UK. Furthermore, the Respondent questioned whether the UK law recognises the Brazilian common law marriage between the Appellants.
The wider circumstances of the case also include complicated pregnancy of the Appellants’ daughter and inability of the Appellants to seek employment or provide for themselves otherwise due to health problems. It was the Sponsors who continuously financially supported the Appellants, both in Brazil and the UK, however there was insufficient evidence of it because it was not deemed appropriate by the family to collect such information.
The Judge ruled in favour of the Appellants, noting that in cases of dependency, there is a need to examine all the circumstances of the situation, as per Reyes (2013).
Dependent parents of EEA national: proof of dependency
Having considered the witness statements and evidence that was available, the Judge concluded that the Appellants were indeed dependent direct relatives of the Sponsors, who were indeed exercising Treaty rights. As to the question of recognition of Brazilian common law marriage, it was held that the UK law recognises such marriage, as per CD Brazil (2008) UKAIT.
This case shows that even in cases where there is insufficient evidence of dependency, with expert legal advice, there is a good chance to challenge the decision to refuse a residence card on the basis of being a dependent family member of an EEA national.